Kupetz v. Elaine Monroe Associates, Inc.

825 F.2d 197
CourtCourt of Appeals for the Ninth Circuit
DecidedAugust 12, 1987
DocketNo. 86-5608
StatusPublished
Cited by4 cases

This text of 825 F.2d 197 (Kupetz v. Elaine Monroe Associates, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kupetz v. Elaine Monroe Associates, Inc., 825 F.2d 197 (9th Cir. 1987).

Opinion

PREGERSON, Circuit Judge:

Appellant Elaine Monroe Associates, Inc. appeals from the district court’s reversal of a bankruptcy court judgment holding that appellee Kupetz, the bankruptcy trustee, could not avoid two check payments made by the debtor, Wolf & Vine, Inc. to appellant.

The parties raise only one issue on appeal: whether the two cheek payments legally took place when the checks were delivered to appellant or four months later when the checks were honored by the drawee bank. Appellant argues that the payments could not be avoided under 11 U.S.C. § 547 because payment legally took place when the checks were delivered. Ap-pellee argues that the payments can be avoided because payment legally took place when the checks were honored.

Although recognizing that, for purposes of section 547, check transactions normally take place at the time of delivery, the district court held that the four-month delay between delivery and honoring of the checks was unreasonable and, therefore, that the transactions were completed only when the checks were honored. We affirm.

BACKGROUND

Appellant, Elaine Monroe Associates, Inc., performed promotional services for debtor Wolf & Vine, Inc. (“the debtor”). For services rendered during the month of June 1981, appellant billed the debtor $3,169.14. The debtor paid appellant by check on July 14,1981. The check was not honored by the bank on which it was drawn until October 13, 1981. For services rendered during the month of July 1981, appellant billed the debtor $3,043.65. The debt- or paid appellant by check on July 31,1981. The check was not honored until November 25, 1981.

The debtor filed a chapter 11 bankruptcy petition on December 23, 1981. Debtor’s bankruptcy was swiftly converted into a Chapter 7 liquidation. Appellee, Arnold Kupetz, was appointed bankruptcy trustee on January 19, 1982.

On January 12, 1984, appellee/trustee filed this proceeding against appellant to avoid the payments made for the services rendered in June and July 1981, and to recover the $6,212.79 paid to appellant. In his complaint, appellee/trustee alleged that he could avoid the two payments under 11 U.S.C. § 547(b) because (1) the debtor was insolvent at the time the transfers were made, (2) the transfers were made within ninety days of the filing of the bankruptcy petition, and (3) the transfers allowed a creditor, appellant, to receive more than it would otherwise have received from the bankruptcy estate. Appellee/trustee argued that avoidance was not prevented by 11 U.S.C. § 547(c)(2)(B) because the payments were not made within forty-five days of the time that the services were rendered.

Appellant asserted that the appel-lee/trustee could not avoid the transfer because (1) payment was made within forty-five days of the time when the services were rendered, and (2) payment was made more than ninety days before the bankruptcy petition was filed.

Appellant argued that the payments took place when the checks were delivered, on July 14 and 31, within forty-five days of the time services were rendered and more than ninety days before the filing of the bankruptcy petition on December 23. Ap-pellee argued that the payments took place when the checks were honored by the bank, on October 13 and November 25, more than forty-five days after the services were rendered and within ninety days of the filing of the bankruptcy petition.

[199]*199The Bankruptcy Court ruled for appellant, finding that “[f]or the purpose of maintaining a preference action pursuant to 11 U.S.C. § 547, it is the date of the issuance of a check, and not the date of honor by the drawee bank, which shall determine the date upon which such transfer shall be deemed to have been made and perfected.”

The district court reversed, but not on the ground that section 547 check transfers always take place when the checks were honored. Instead, the district court held that the unexplained four-month delay between the delivery of the checks and their being honored was “per se unreasonable” and therefore that these payments only took place when the checks were honored.

STANDARD OF REVIEW

Because this court is in as good a position as the district court to review the bankruptcy court’s findings, the bankruptcy court’s decision is reviewed independently. Acequia, Inc. v. Clinton (In re Acequia, Inc.), 787 F.2d 1352, 1357 (9th Cir.1986); Ragsdale v. Haller, 780 F.2d 794, 795 (9th Cir.1986). This court reviews the bankruptcy court’s findings of fact under a clearly erroneous standard and its conclusions of law de novo. Pizza of Hawaii, Inc. v. Shakey’s, Inc. (In re Pizza of Hawaii, Inc.), 761 F.2d 1374, 1377 (9th Cir.1985).

ANALYSIS

I. 11 U.S.C. $ 547

Section 547 of the Bankruptcy Code gives a bankruptcy trustee the power to avoid “preferential” transfers by the debt- or to creditors when the transfers are made within a certain period of time before the filing of the bankruptcy petition. This avoidance power prevents the debtor from favoring some creditors over others by making payments to them just before filing for bankruptcy. Grover v. Gulino (In re Gulino), 779 F.2d 546, 548-49 (9th Cir.1986). Section 547 was amended substantially in 1984. Act of July 10, 1984, Pub.L. No. 98-353, 98 Stat. 355, 378 (1984). Those amendments, however, do not affect this proceeding because the transactions at issue took place in 1981.

Section 547(b)1 authorizes the trustee to avoid a transfer if five conditions are met: (1) the transfer is made for the benefit of a creditor; (2) the transfer is for or on account of a debt owed before the debtor made the transfer; (3) the debtor was insolvent when the transfer was made; (4) the transfer was made during the ninety days immediately preceding the filing of the bankruptcy petition; and (5) the transfer enabled the creditor to receive more than he would otherwise have received from the bankruptcy estate. S.Rep. No. 989, 95th Cong., 2d Sess. 87, reprinted in 1978 U.S. Code Cong. & Admin.News 5787, 5873; H.R.Rep. No. 595, 95th Cong., 2d Sess. 372, reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6328; see Levin, An Introduction to the Trustee’s Avoiding Powers, 53 Am.Bankr.L.J. 173, 183 (1979).

An avoidance that meets the conditions of section 547(b) can still be barred by section 547(c), which provides exceptions to the trustee’s avoiding power. Section [200]*200547(c)(1) and the pre-1984 section 547(c)(2)2

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Bluebook (online)
825 F.2d 197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kupetz-v-elaine-monroe-associates-inc-ca9-1987.